Well, the metaphorical ink was barely dry on last week’s blog pondering whether Trump would defy the Supreme Court and go full-blown fascist dictator when we got our answer.

Last Thursday, when the Court directed the White House to comply with a lower court order and “facilitate” the return of Kilmar Abrego Garcia from an infamous El Salvadoran gulag, I suggested there were three general scenarios for how Trump & Co. would respond: comply; slow-walk things for a while and then disingenuously contend it can’t be done; or openly defy the order.

But we found out there was a fourth and even more extreme option: not only openly defy the Court (speaking in a rare 9-0 unanimous decision), but proclaim that even if the Bukele government did return Mr. Garcia to the United States, it would just arrest and deport him back to El Salvador again, which is what White House deputy chief of staff and xenophobic anti-immigrant fanatic Stephen Miller impudently told reporters on Monday.

Many informed observers have long noted that with his openly autocratic, norm- and law-breaking agenda, Trump was headed for an inevitable showdown with the Supreme Court, and that that moment would be the defining one in America’s rapid slide into authoritarianism…..or more optimistically, the moment that slide is moderated. Well, the showdown has arrived, and the verdict is not good.

With Trump’s brazen defiance of the Supreme Court, we have just crossed the reddest of lines. It only took us 84 days to get here, so Hitler still has the record with 53 days, but this is still pretty impressive.

On Substack, the historian Timothy Snyder—currently of Yale but soon to depart for the University of Toronto—wrote, ”This is the beginning of an American policy of state terror, and it has to be identified as such to be stopped.”  When the guy who literally wrote the book on tyranny is fleeing the country, what does that tell you?

The silver lining is that this should mean no more think-pieces about whether we’re headed into a constitutional crisis, which have arrived with numbing frequency over the last nine years. In my view, that boat sailed back around 2019 with Trump’s first impeachment, but now its mizzenmast is not even a speck on the distant horizon.

LET’S NOT QUIBBLE OVER WHO IMPRISONED WHO

Now, you may say that the administration is not openly defying the Supreme Court. No offense, but that is the exact kind of semantic game the administration itself is playing.

It’s true that Trump didn’t bluntly give the berobed nine the middle finger live on CNN. But for all his bluster, that’s never been his style, has it? His trademark dissembling, gaslighting, twisting of words, and legal foot-dragging are effectively the same thing, except in that it’s perhaps even more insulting.

In its initial refusal to redress the horrific error of Garcia’s removal and imprisonment in a foreign hellhole, the administration would have us believe that once an individual leaves US airspace—be that individual an undocumented migrant, a legal permanent resident, or even a US citizen, and regardless of whether they were removed from American soil legally or not—there’s just nothing we can do. Sorry: our bad!

Such bad faith has remained at the core of the administration’s case ever since.

So we have the Trump administration insisting that the order to “facilitate” Garcia’s return means only that it shouldn’t stand in the way, not that it is required to take an active role, and insisting that it’s all in the hands of the government of El Salvador. Pam Bondi, bless her heart, said that all the Department of Justice would do is send a plane if El Salvador’s strongman president Nayib Bukele were to release him from CECOT (Centro de Confinamiento del Terrorismo, or Terrorism Confinement Center). Meanwhile the DOJ has filed motions claiming that the judge’s deadline for compliance is unrealistic, insisted that the courts have no power in this matter anyway because it is in the realm of foreign policy, and refused to offer any concrete evidence that it has done a single thing to repatriate Mr. Garcia, even when the lower court judge Paula Xinis demanded it.

In fact, the DOJ has acted in such bad faith that Lawfare’s Ben Wittes writes that he wonders why Judge Xinis—or  the Supreme Court for that matter—would trust anything the government says in this matter. After all, the first DOJ attorney on the case, the one who admitted that Garcia was deported in error, was subsequently fired (as was his boss, just to really make the point), and publicly rebuked by Bondi for failing to “zealously advocate on behalf of the United States.” As Wittes writes, “Given that Judge Xinis knows what happens to a Justice Department lawyer who behaves as an officer of the court during the Trump administration, why should she assume that the government’s current filings are meeting those standards?”

Such contemptible behavior by this administration is enough to constitute non-compliance in my book. But Monday’s press event in the Oval Office made that contempt even clearer, in what The Atlantic’s David Graham called “a performance of smirking, depraved, and wholly unconvincing absurdity.”

The event very much recalled the Oval Office travesty involving Volodymyr Zelenskyy last month, except that this time the foreign visitor was part of the theater rather than its victim. As Graham described it, even as the White House continues to insist that it’s all in Bukele’s hands, Bukele himself was “insistent that he was powerless to do anything about a man in a prison he controls.”

Make no mistake: when Trump and Bukele appear together in the Oval Office and jointly announce that Garcia is not coming home, that is open defiance of the US Supreme Court. The rest is kabuki. So this is not really scenario #2 above, pretending to comply, not even temporarily. It is more like pretending to pretend. (“No version of this ends with him living here,” as Stephen Miller said.) Even the WaPo’s odious right wing columnist Jason Willick observed that the White House appears to be taunting the Supreme Court, even as he said that he, too, would have exploited the generousness of SCOTUS’s wording. (Trump is just so awesome even when he’s evil, you know????) As The Atlantic’s Adam Serwer noted, the “rhetorical game the administration is playing, where it pretends it lacks the power to ask for Abrego Garcia to be returned while Bukele pretends he doesn’t have the power to return him, is an expression of obvious contempt for the Supreme Court—and for the rule of law.”

The argument of DOJ lawyers—echoed by nauseatingly cynical and self-serving others like Vance and Rubio—that the US can’t control or even influence the actions of sovereign foreign nations is risible. We do it all that time: that’s what foreign policy and diplomacy are. The idea that we cannot exert pressure on this tiny, impoverished country is ridiculous, and an insult to our intelligence. Or as NPR’s Steve Inskeep put it: “If I understand this correctly, the US president has launched a trade war against the world, believes he can force the EU and China to meet his terms, is determined to annex Canada and Greenland, but is powerless before the sovereign might of El Salvador. Is that it?”

Similarly, a BlueSky user named Laurie ES wrote that the Trump administration “was somehow able to get the Tate Brothers out of a Romanian Prison, have them flown 2 Florida in a Private Jet & housed on the taxpayer dime, yet they are powerless 2 bring back a GreenCard holder wrongfully deported 2 an El Salvador for-profit Prison.”

There can be no question that Bukele is simply doing Trump’s bidding;  he is a paid contractor of the US, having received $6 million in taxpayer dollars from the United States government for (unconscionable) services rendered. The White House could certainly prevail upon him to return Mr. Garcia, if it wanted to. If Bukele says he will not or cannot do so, it is because that is what Donald Trump has conveyed to him that he wants him to say, like a fucking puppet with his hand up Nayib’s ass. But it ain’t convincing. I thought the White House would plead helplessness but I didn’t think Bukele would. What kind of strongman is he, anyway?

But the administration has gone beyond simply saying it can’t comply, or that it’s up to another government: it has argued that the courts don’t even have the power to order it what to do in this case, because it is really a matter of foreign policy, and the judiciary has no jurisdiction in that realm, which is the purview of the president.

Timothy Snyder made short work of that shameless ploy, writing:

On the White House’s theory, if they abduct you, get you on a helicopter, get to international waters, shoot you in the head, and drop your corpse into the ocean, that is legal, because it is the conduct of foreign affairs…

If we accept the idea that moving a person from one place to another undoes rights and disempowers the judiciary, we are endorsing the basic Nazism practice that enabled the killing of millions.

DON’T LET THE TERRORISTS WIN

While the administration initially admitted that Garcia’s deportation was an “administrative error” (paging Mr. Buttle); its position is now that it was not a mistake at all. Trump, Miller, and others in their circle are now promoting the idea that Garcia is obviously a criminal—they say so!—and not just any old criminal either, but a monster on the order of—wait for it—Bin Laden. (On that front, Bukele went beyond mere criminality and pronounced Garcia “a terrorist,” again without a shred of evidence.) The White House even claims, also without any evidence, that he’s a member of MS13, with which Trump arbitrarily considers the US to be in a state of war, thereby conferring on him wartime-level presidential powers. Speaking of the ol’ GWOT.

But as with many would-be despots, this trope of declaring someone a “criminal” is at the heart of Trump’s autocratic project. (Parallel allegations: traitor, terrorist, pedophile.) During the Oval Office event, Trump was challenged by a broadcast journalist over breaking his promise to abide by any Supreme Court ruling on the matter; in reply he sneered: “Why don’t you just say, ‘Isn’t it wonderful that we’re keeping criminals out of our country?’,” adding, “That’s why nobody watches you anymore.” The gaslighting continued as Trump turned to Bukele and marveled that his critics want to return a “criminal” to the US. “They’re sick,” he said. “These are sick people.”

That assertion that Mr. Abrego Garcia is a criminal is Fascism 101. Show us the proof, I would say. Because once the label of “criminal” is attached to a given individual, an authoritarian regime finds it all too easy to justify even the most brutal acts against that person, and expects the public to go along, which it frequently does. As a result, the DOJ has also claimed that Garcia’s protected status as an asylum seeker is no longer valid, making him eligible for removal should he return, alive. Hence Miller’s repeated insistence that he is an “illegal alien,” which in Little Stephen’s worldview makes him subhuman and justifies any actions the US government wishes to take against him. (Life’s no fun indeed.) Ironically, Garcia’s current situation actually proves quite the opposite, very much affirming that he had a well-founded fear of persecution in his home country. And of course, there is the final irony that Trump himself is a convicted felon, 34 times in fact, who barely dodged still more and far worse convictions by the skin iof his teeth and massive political and legal maneuvering.

But immigration status is not really the core issue here, because the allegation of “criminality” as a tool of authoritarianism trumps (ahem) passport status. Asked about the idea of sending US citizens convicted of violent crimes to CECOT, Donald himself said “I’m all for it,” and then he and Bukele and Vance and Rubio all laughed about the idea of building more gulags. (The despicable Christian nationalist and mercenary kingpin Erik Prince of Blackwater fame is already pitching the administration such plans.) That’s horrifying enough—and by now we know that these outrages usually start with trial balloons that are initially dismissed as just loose talk but eventually become policy. But if you think Trump & Co. will stop with convicted criminals, or with non-citizens, you obviously haven’t been paying attention for the past decade. Garcia himself—though a legal alien and not a citizen—is a case in point, a man with no criminal record whatsoever, simply proclaimed one by the administration after the fact because that designation suits its needs. From there it is not a very big step to doing the same thing to you or me or anyone else.

I don’t know if the arrest of Mr. Garcia and the ensuing crisis were deliberately planned by the administration or merely opportunistic on its part, but it doesn’t matter because the effect is the same. It is now being used as a blunt and chilling demonstration to the American people to shut the fuck up and toe the line or this is the sort of fate that awaits you. It has become a conscious, pointed effort by the Trump regime to demonstrate to the American people, and to the whole world for that matter, and in particular to any institutions that might dare oppose it (like the courts, big law, the media, academia, Congress, and so on), that it intends to rule with absolute unfettered and unchallenged power and if you don’t like it you can go fuck yourself. Wait, never mind, no need: they’ll fuck you for you and save you the trouble. It is an announcement that if they don’t like you, for whatever reason, and without any evidence of wrongdoing or any nod at due process, they assert the authority to have secret policemen grab you off the street and throw you in a foreign gulag under the control of a despot, the stated policy of which is that you will never return. Migrant, refugee, legal permanent resident, US citizen—it matters not.

In that sense, the Garcia case is even scarier than the Mahmoud Khalil case. The chilling aspect of the latter is that it turns on the administration’s desire to punish someone simply because it doesn’t like their political views—in other words, a free speech case, which is terrible in its own right. But the former suggests that the Trump administration thinks it can disappear anyone it wants into the hands of a foreign despot at will.

In The Bulwark, Jonathan V. Last writes:

If these precepts are allowed to stand—and so far, they have been—what would stop the government from apprehending a US citizen, putting the American on a plane to El Salvador, and handing him to that country’s government with the expectation of indefinite imprisonment

Certainly if some namby-pamby, woke, DEI lawyer filed a writ of habeas a court might say, “This is very bad. You, government attorneys, cannot do that.” To which the government would respond, “Maybe we ‘can’t.’ But we did. And there is no longer a remedy for this action. We have no jurisdiction over the El Salvadoran government. Moreover, no one in America has standing to contest our actions. Where’s the defendant? I don’t see any defendant here. Do you see a defendant, your Honor?”

(But her emails, amirite?)

To that end, there are several reasons why the administration and its El Salvadoran ally don’t want Kilmar Abrego Garcia returned. For one, it would make him the only human being ever to leave that concentration camp alive, and Bukele cannot have him describing to the world what goes on there. But from the US perspective, there is an even more sinister motive, which Heather Cox Richardson breaks down, quoting the legal analyst Chris Geidner of Law Dork: 

Geidner….noted that Trump’s declaration this morning that he wanted to deport “homegrown criminals” suggests that the plan all along has been to be able to get rid of US citizens by creating a “Schroedinger’s box” where anyone can be sent but where once they are there the US cannot get them back because they are “in the custody of a foreign sovereign.”

“If they can get Abrego Garcia out of the box,” Geidner writes, “the plan does not work.”

For that reason, I am very concerned that we will suddenly hear that Mr. Garcia mysteriously died in custody, by suicide I am sure we will be told.

WILL JOHNNY STRIKE UP THE BAND?

How Orwellian have things gotten? This Orwellian: Stephen Miller claimed that the Supreme Court’s 9-0 decision ordering the White House to bring Mr. Garcia home was actually a victory for the administration. Miller actually said that, insisting that “the Supreme Court said that the district court order was unlawful and its main components were reversed 9–0 unanimously,” an assertion that Geidner called “disgusting, lying propaganda.” Miller even had the gall to say that bringing Garcia back would be tantamount to “kidnap(ping) a citizen of El Salvador and fly him back here.” Joe Goebbels would doff his cap in awe.

All of this is a farce and John Roberts knows it. Whether he will stand up and do anything about it is another story. But perhaps he is fine with going down in history as the most feckless Chief Justice in US history, the one who presided over the final collapse of American democracy, having already overseen a series of decisions that set us up for that outcome.

So Mr. Bigshot Chief Justice: the ball is in your court. Though maybe “balls” is not the right allusion here.

Even if Roberts does rediscover his cojones and stands up to the president, will Trump obey, or will we drift into apocryphal Andy Jackson/John Marshall “let him enforce it” territory? (By some accounts, Jackson did eventually comply with the Marshall’s order in that case, by the way.) If Roberts does not stand up, or even if he does and we as a nation allow Trump to trample over him, any pretense of democracy on these shores will have become a cruel joke.

In a Bulwark piece titled “Bring. Him. Home,” Jonathan Last—who for my money is beginning to rival Adam Serwer as the sharpest political writer in America today—argues that no one from America who goes into CECOT will ever come out. What goes on there, he writes, is “not incarceration; it is liquidation,” and that “is why Donald Trump cannot allow Kilmar Abrego Garcia to return to the United States. And it is why the democratic opposition must go to the mattresses to bring him home.”

Last argues that Garcia is a symbol around which anti-Trump, pro-democracy opposition can and must gel. And he has a concrete plan for so doing:

Chris Murphy and Chris Van Hollen get it. Murphy laid out the stakes clearly yesterday after Trump and Bukele set the Constitution on fire: Van Hollen announced that he will travel to El Salvador this week to seek Abrego Garcia’s release. That is a start. Here is what should come next:

An elected Democrat ought to be on the ground in El Salvador every minute of every day until Abrego Garcia is brought home. They should be in constant communication with the Salvadoran government and should make an endless list of demands. In short: Congressional Democrats should do the job that Justice Department lawyers, in contravention of the Supreme Court, are refusing to do. They should take it upon themselves to facilitate the return of Abrego Garcia. Everyone who is not part of the authoritarian regime is a member of the dissident movement now. The sooner they realize it, the better.

In this role, Democrats should give daily updates to the public about their progress. They should make themselves targets. And they should inflict political pain on Donald Trump.

This will require a paradigm shift for Democrats. They will have to act less like an American political party and more like Solidarity in Poland in the 1980s or Alexei Navalny’s People’s Alliance over the last decade.

But they should be under no illusions. The old American order is dead. It ended on April 14, 2025, when a Latin American strongman sat in the Oval Office and discussed sending US citizens to foreign concentration camps with the American president while they jointly defied the Supreme Court.

Everyone who is not part of the authoritarian regime is a member of the dissident movement now. The sooner they realize it, the better.

This is our reality and I do not see how, after yesterday, anyone in America could fail to see it.

GOODBYE (AMERICA THE) BEAUTIFUL

We are in a bad place. On the same day that Trump and Bukele staged their farce in the Oval Office and told the Supreme Court to pound sand, a Trump supporter tried to set fire to Democratic Pennsylvania Governor Josh Shapiro’s house while Shapiro and his wife, their four children, and another family were asleep there after celebrating Passover. For good measure, the attacker also expressed his hatred for the governor and his desire to beat him with a hammer, Paul Pelosi-style. That this stochastic political violence is happening in tandem with the march of authoritarianism within the official system is especially chilling. This is full-blown Germany in the Thirties stuff.

And yet I’m shocked that the Abrego Garcia story is not a bigger “we interrupt our regular programming” type deal, seeing as it’s kinda the end of the rule of law in the USA. As yet another BlueSky user named Max Berger wrote in a widely shared post, “We’ve reached the point in our descent into fascism where the Jewish governor’s house getting firebombed on Passover by a guy trying to bash his head in with a sledgehammer is overshadowed by the story of the President saying he wants to build foreign gulags for US citizens.”

The next step will be to ship a US citizen to a foreign concentration camp like CECOT—perhaps an inmate from the federal prison population, so the administration can accuse anyone who so much as clears their throat in mild complaint of being a bleeding heart liberal who is soft on crime and out of touch with real ‘Merica. And then, after they succeed in doing that, they will do it to a journalist or public servant who has done nothing more than displease Trump, like Chris Krebs or Miles Taylor.

Do you doubt it for a moment? Before the election, I posted a blog titled “How Far Would He Go?”, suggesting that Trump is not beyond a Wannsee Conference type policy. Hyperbole? Hysteria? Trump Derangement Syndrome. Tell it to Kilmar Abrego Garcia’s family.

There’s an anti-fascist Italian folk song from the 1940s called “Bella Ciao,” a new version of which Marc Ribot and Tom Waits released in 2018. It starts like this:

One fine morning I woke up early
Bella ciao, bella ciao, bella ciao
One fine morning I woke up early
To find the fascists at my door

Those same visitors came knocking in America yesterday. Pretty soon they won’t wait for us to open up.

**********

Photo: Prisoners at the Terrorist Confinement Centre (CECOT) in Tecoluca, El Salvador, March 15, 2023. Credit: Government of El Salvador.